Charles Cooper, Barrister at Magdalen Chambers, reviews the recent Solicitors negligence case of Feltham v. Bouskell.

It is an obvious requirement for a new Will to be valid that the testator, whose Will it is, should not lack mental capacity. The decision in Feltham v. Bouskell [2013] EWHC 1952 (Ch) may give hope to beneficiaries disappointed by a Will found invalid for such lack of capacity, where a Solicitor was instructed in relation to that Will.

The testatrix in that case, Hazel Charlton, was 90 years old and suffering from dementia when her step-granddaughter contacted her Solicitor to give instructions for a new Will. The changes Hazel apparently wished to make were substantial, her longstanding partner (and one of the three principle beneficiaries under her existing Will) having died 10 days before. The Solicitor explained that he would need to obtain a medical opinion in relation to her capacity, and agreed to instruct her GP to prepare a report.

The report, which concluded that she had the requisite mental capacity, arrived over a month later and the Solicitor chose not to take any further action unless Hazel raised the issue with him again because he had formed the view that she did not really want to change her Will.

Almost 2 months after the initial instructions had been given, the step-granddaughter prepared a new Will for Hazel using a Wills website and her husband arranged for two people to witness Hazel's signature. The new Will left just £50,000 to each of the principle beneficiaries under her previous Will, and the substantial residue exclusively to her step-granddaughter.

Hazel died a month later, and the principle beneficiaries under her previous Will successfully challenged the new Will on the ground that she did not know and approve the contents of the new Will before she signed it. The step-granddaughter then brought a claim against the Solicitor for the loss she had incurred.

The Court held that on receipt of the instructions the Solicitor should have either refused to act and made his position clear to the client, or have taken steps to satisfy himself as to his client’s mental capacity and carried out the client's instructions promptly, and in failing to do so was negligent.

In particular, the Court found that:

  1. the Solicitor's letter to the client, on receipt of the instructions, in effect accepted those instructions subject to satisfying himself on the capacity issue;

  2. by agreeing to instruct the GP to prepare a report, the Solicitor took on the responsibility of satisfying himself as to the client's capacity and doing so with reasonable expedition;

  3. the 5 week period between giving instructions and receiving the report was too long in the circumstances, the Solicitor should have chased the report after 10 days and if the GP was unable to prepare the report expeditiously then the Solicitor should have arranged for another doctor to be instructed;

  4. on receiving the report, the Solicitor should have arranged to visit the client to discuss the proposed changes to her Will and to satisfy himself that they were in accordance with her wishes.

While the finding of negligence in this case was fact-specific, a number of Solicitors have expressed surprise at the decision which may reflect a wider-spread problem in the assessment of testamentary capacity.